ConCourt rules couple’s post-customary marriage antenuptial contract is invalid

The Constitutional Court (ConCourt) has found that a divorced couple’s antenuptial contract, signed after their customary marriage, is invalid because it was never formalised through the courts.

The judgment was delivered on Wednesday, 21 January, bringing clarity to the legal position governing matrimonial property regimes where couples enter into both customary and civil marriages.

Origins of the dispute

The case involved a couple identified as J.R.M (plaintiff) and V.V.C (defendant), who entered into a customary marriage on 5 August 2011.

At the time of their marriage, no antenuptial contract was concluded.

This resulted in the marriage being in community of property, with both spouses acquiring equal, undivided shares in their “joint estate”.

Several years later, on 19 February 2019, the couple signed an antenuptial contract.

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The document stipulated that a civil marriage they intended to conclude in the future would be out of community of property, subject to the accrual system.

The civil marriage was eventually concluded on 10 June 2021.

The relationship subsequently deteriorated, with both parties stating that the marriage had irretrievably broken down and could not be restored.

Constitutional challenge

In court proceedings, J.R.M contended that it had always been the mutual intention of the parties for their marriage to be out of community of property and governed by the accrual system.

A constitutional challenge against Section 10(2) of the Recognition of Customary Marriages Act was later launched.

Section 10(2) provides that when spouses to an existing customary marriage conclude a civil marriage, their matrimonial property regime remains in community of property unless an antenuptial contract provides otherwise.

However, V.V.C argued that the effect of the Section 10(2) caused her to lose ownership rights over assets registered in her husband’s name, despite those assets forming part of the joint estate created by the customary marriage.

Gauteng High Court ruling

In June 2024, the Gauteng High Court in Pretoria ruled in favour of V.V.C and declared the 2019 antenuptial contract “invalid and unenforceable”.

The court also found that Section 10(2) of the Act was inconsistent with Section 9(1) of the Constitution because it allows spouses to change their matrimonial property system after a customary marriage without court oversight.

In addition, the court ruled that the provision conflicts with section 25(1) of the Constitution, as it can unfairly strip financially weaker spouses of their ownership rights.

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This happens when spouses are persuaded, after marriage, to sign agreements that change their marriage from in community of property to out of community of property, without court supervision.

The declaration of invalidity was suspended for 12 months to allow Parliament an opportunity to address the constitutional defect, subject to confirmation by the ConCourt.

ConCourt judgment

On Wednesday, the ConCourt, in its majority ruling, refused to uphold the high court’s declaration that Section 10(2) was invalid.

In explaining its decision, Judge Steven Majiedt emphasised that the Recognition of Customary Marriages Act treats customary marriages and civil marriages as legally equal.

So, entering into a civil marriage after a customary one does not bring the customary marriage to an end.

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Instead, the civil marriage absorbs the customary marriage, resulting in a single legal union governed by civil law.

“The marriage between the parties is a single, continuous marriage that begins as a customary marriage and later becomes governed by civil law upon the conclusion of a civil marriage.

“The change is declaratory rather than constitutive,” the summary of the judgment reads.

pic.twitter.com/yTSAfPKBi7

— Constitutional Court (@ConCourtSA) January 21, 2026

Majiedt held that Section 10(2), in its current form, confirms that a civil marriage concluded after a customary marriage remains in community of property, unless the parties lawfully change that position.

In this context, the ConCourt pointed to Section 21 of the Matrimonial Property Act (MPA), which allows spouses to jointly apply to a court to change their matrimonial property system.

“Where spouses wish to change their matrimonial property regime at any stage during their marriage, section 21 of the MPA provides a clear and constitutionally compliant mechanism for doing so, with appropriate safeguards for creditors and vulnerable spouses,” the apex court explained.

Antenuptial contract declared invalid

However, Majiedt found that the antenuptial contract entered into after the customary marriage in this case specifically is “invalid” because the matrimonial property arrangement was not not formally approved by a court.

This meant the divorce couple were still married community of property when they entered into a civil marriage.

“In the present instance, section 21 of the MPA was not followed and for that reason, the purported ANC [antenuptial contract] executed before the conclusion of the civil marriage is invalid.

“The effect of the high court’s order of invalidity is that the parties were and remain married in community of property. This conclusion means that the conditional constitutional challenge falls away.

“The high court erred in venturing into the terrain of the constitutional challenge – the question of constitutionality was only open if the high court were to have found that the ANC was indeed valid,” the 76-page judgment concluded.

Implications

The ConCourt outcome could possibly have broader implications for couples across South Africa, including for the widely publicised divorce case involving DJ Nkosinathi “Black Coffee” Maphumulo and actress Enhle Mbali Mlotshwa.

In October 2025, the Gauteng High Court in Johannesburg ruled that the couple’s customary marriage, entered into in May 2011, was valid and in community of property.

The court set aside their civil marriage concluded in January 2017, which had the effect of nullifying their December 2016 antenuptial agreement.

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It also ordered that the couple’s joint estate be divided equally.

Maphumulo was further ordered to pay spousal maintenance of R67 167 to Mlotshwa until her death or remarriage, as well as R25 000 per month in child support for each of their two children.

The DJ has since lodged an appeal with the Supreme Court of Appeal (SCA).

This article has been updated following an error in which it was stated that antenuptial contracts entered into after a customary marriage are legally valid.